Citation Nr: 0824870
Decision Date: 07/24/08 Archive Date: 07/30/08
DOCKET NO. 07-30 578 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim of
entitlement to service connection for depression.
2. Whether new and material evidence has been received to
reopen a claim of
entitlement to service connection for alcohol dependency.
3. Whether new and material evidence has been received to
reopen a claim of
entitlement to service connection for drug dependency.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Nathaniel J. Doan, Associate Counsel
INTRODUCTION
The veteran had active service from January 1978 to April
1982. Thereafter, the veteran had reserve duty service.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma. This rating decision found new and
material evidence sufficient to reopen claims for entitlement
to service connection for depression, alcohol dependency and
drug dependency had not been submitted. The veteran's
disagreement with this rating decision led to this appeal.
Regardless of the RO's action regarding reopening the
veteran's claims, the Board must independently address the
issue of reopening a previously denied claim. That is,
whether a previously denied claim should be reopened is a
jurisdictional matter that must be addressed before the Board
may consider the underlying claim. See Jackson v. Principi,
265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board does not have
jurisdiction to review the claim on a de novo basis in the
absence of a finding that new and material evidence has been
submitted); see also Barnett v. Brown, 83 F.3d 1380 (1996).
The veteran testified before the undersigned Veterans Law
Judge in June 2008. A copy of the transcript of this hearing
has been associated with the claims file. At the time of the
hearing, the veteran submitted additional evidence, but
waived initial consideration of this evidence by the agency
of original jurisdiction (AOJ), the RO in this case. See
38 C.F.R. § 20.1304(c).
The veteran's appeal has been advanced on the docket.
FINDINGS OF FACT
1. The RO denied a claim for depression in a June 2004
rating decision; the veteran did not appeal this decision.
2. Evidence received since the June 2004 rating decision
denying service connection for depression is not new and does
not relate to an unestablished fact necessary to substantiate
the claim.
3. An unappealed June 2004 RO decision denied service
connection for alcohol dependency .
4. Evidence received since the June 2004 rating decision
denying service connection for alcohol dependency is not new
and does not relate to an unestablished fact necessary to
substantiate the claim.
5. The RO also denied a claim for drug dependency in the
June 2004 rating decision that was not appealed by the
veteran.
6. Evidence received since the June 2004 rating decision
denying service connection for drug dependency is not new and
does not relate to an unestablished fact necessary to
substantiate the claim.
CONCLUSIONS OF LAW
1. The RO's June 2004 rating decision is final regarding
entitlement to service connection for depression. 38
U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.1103
(2007).
2. New and material evidence has not been received regarding
service connection for depression since the June 2004
decision, and the claim not reopened. 38 U.S.C.A. §§ 5103,
5103A, 5107, 5108 (West 2002); 38 C.F.R. § 3.156(a), 3.159
(2007).
3. The RO's June 2004 rating decision is final regarding
entitlement to service connection for alcohol dependency. 38
U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.1103
(2007).
4. New and material evidence has not been received regarding
service connection for alcohol dependency since the June 2004
decision, and the claim not reopened. 38 U.S.C.A. §§ 5103,
5103A, 5107, 5108 (West 2002); 38 C.F.R. § 3.156(a), 3.159
(2007).
5. The RO's June 2004 rating decision is final regarding
entitlement to service connection for drug dependency. 38
U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.1103
(2007).
6. New and material evidence has not been received regarding
service connection for drug dependency since the June 2004
decision, and the claim not reopened. 38 U.S.C.A. §§ 5103,
5103A, 5107, 5108 (West 2002); 38 C.F.R. § 3.156(a), 3.159
(2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L.
No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002). The VCAA provides,
among other things, for notice and assistance to VA claimants
under certain circumstances. VA has issued final rules
amending its adjudication regulations to implement the
provisions of the VCAA. See generally 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a)). The intended effect of these
regulations is to establish clear guidelines consistent with
the intent of Congress regarding the timing and the scope of
assistance VA will provide to a claimant who files a
substantially complete application for VA benefits or who
attempts to reopen a previously denied claim.
In order to be consistent with 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant
about the information and evidence not of record that is
necessary to substantiate the claim; (2) inform the claimant
about the information and evidence that VA will seek to
provide; and (3) inform the claimant about the information
and evidence the claimant is expected to provide.
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that, upon receipt of an
application for a service-connection claim, 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Additionally, this notice must indicate that a disability
rating and an effective date for the award of benefits will
be assigned if service connection is awarded.
During the pendency of the veteran's appeal, the Court also
issued a decision in Kent v. Nicholson, 20 Vet. App. 1
(2006), which held, in part, that VA's duty to notify a
claimant seeking to reopen a claim included advising the
claimant of the evidence and information that is necessary to
reopen the claim and VA must notify the claimant of the
evidence and information that is necessary to establish his
entitlement to the underlying claim for the benefit sought by
the claimant. The Court further held that VA must, in the
context of a claim to reopen, look at the bases for the
denial in the prior decision and to respond with a notice
letter that describes what evidence would be necessary to
substantiate that element or elements required to establish
service connection that were found insufficient in the
previous denial. Id. at 9-10.
The Board finds that VA has met these duties with regard to
the claims adjudicated in this decision. There is no issue
as to providing an appropriate application form or
completeness of the application. The veteran was issue a May
2006 VCAA notification letter regarding the claims on appeal.
The appellant was informed about the information and evidence
not of record that is necessary to substantiate his claims;
the information and evidence that VA will seek to provide;
and the information and evidence the claimant is expected to
provide. Further, the veteran was informed regarding how to
establish disability ratings and effective dates, as outlined
in Dingess.
Although the representative has contended that the veteran
has not been provided notice regarding new and material
evidence, the May 2006 letter provided definitions of "new"
and "material" evidence. Although the language defining
these terms in the letter is not identical to the language in
the pertinent regulation, the Board finds that the
definitions substantially tract the meaning of the terms as
defined in 38 C.F.R. § 3.156(a). Further, the veteran was
provided a copy of 38 C.F.R. § 3.156(a) in the September 2007
statement of the case.
In addition, the May 2006 letter informed the veteran that
service medical records failed to show any complaint of,
treatment for or diagnosis of depression during active
military service, and was informed that the evidence needed
to relate to that fact. The Board finds that this letter
substantially satisfied the notice requirements outlined in
Kent. To the extent that this language did not satisfy the
notice requirements set out in Kent, however, the Board finds
that any notice deficiency is harmless. The veteran's and
his representative's statements during the Board hearing
indicated knowledge that the evidence must show record of
incurrence in service. See Dalton v. Nicholson, 21 Vet. App.
23, 30 (2007).
In the May 2006 letter, the veteran was also informed that
alcohol and drug dependency were defined as willful conduct
under the law, and that direct service connection could not
be granted due to a disability the result of willful
misconduct. The Board notes that the claims have been
adjudicated on a direct service connection basis only as the
veteran is not service connected for any disabilities. Thus,
even if reopened, such claims would have to be denied as a
matter of law. Accordingly, no additional notice under Kent
is required with respect to the claims for service connection
for alcohol and drug dependency. See Sabonis v. Brown, 6
Vet. App. 426, 430 (1994).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II), the Court held, in part, that a VCAA notice, as required
by 38 U.S.C. § 5103(a), must be provided to a claimant before
the initial unfavorable AOJ decision on a claim for VA
benefits. The May 2006 VCAA notification letter was furnished
to the veteran prior to the July 2006 RO rating decision that
is the subject of this appeal. Therefore, this notification
letter was timely.
The veteran has been provided the opportunity to respond to
VA correspondence and over the course of the appeal has had
multiple opportunities to submit and identify evidence.
Furthermore, the veteran has been provided a meaningful
opportunity to participate effectively in the processing of
his claims by VA.
While the veteran does not have the burden of demonstrating
prejudice, it is pertinent to note that the evidence does
not show, nor does the veteran contend, that any notification
deficiencies, either with respect to timing or content, have
resulted in prejudice.
The Board also finds that all necessary assistance has been
provided to the veteran. The evidence of record includes VA
medical records, service personnel records, and service
medical records from his active and reserve duty. The Board
is cognizant that the veteran and the representative have
contended a hospital at Fort Bliss, Texas has additional
service medical records relating to evaluation and treatment
of one or more of the disabilities at issue, and that VA
should attempt to retrieve these records. Review of the
claims file reveals, however, that the National Personnel
Records Center has provided all available service medical
records. Moreover, as explained in the analysis below, the
veteran indicated in a report of medical history completed in
1986 that he had no history of a psychiatric disorder and he
made no reference to a prior hospitalization. The Board
finds, therefore, that a remand to seek to obtain records of
the alleged hospitalization is not required.
In view of the foregoing, the Board finds that VA has
fulfilled its duty to notify and assist the veteran in the
claims under consideration. Adjudication of the claims at
this juncture, without directing or accomplishing any
additional notification and/or development action, poses no
risk of prejudice to the veteran. Bernard v. Brown, 4 Vet.
App. 384, 394 (1993).
Law and Regulations, Factual Background, and Analysis
The veteran contends that he has depression, as well as
alcohol and drug dependency disabilities, attributable to
service. He has testified that he was treated for these
disabilities at a hospital as Fort Bliss, Texas during
service. The veteran has not made any direct assertion that
these disabilities were incurred during his reserve duty. In
his March 2007 notice of disagreement, he asserted that he
was discharged from the service for drug and alcohol
problems.
The veteran originally filed a claim for service connection
for these three disabilities, among other claims, in August
2003. The claims for entitlement to service connection for
depression, and alcohol and drug dependency were denied in a
June 2004 rating decision. This rating decision was not
appealed and became final. See 38 U.S.C.A. § 7105.
The veteran filed to reopen these claims in April 2006 and
May 2006. As noted above, in the July 2006 rating decision,
while the RO found that new and material evidence had not
been submitted, the Board must independently address the
issue of reopening the veteran's previously denied claims.
Jackson, supra.
Despite the finality of a prior adverse decision, a claim
will be reopened and the former disposition reviewed if new
and material evidence is presented or secured with respect to
the claim which has been disallowed. See 38 U.S.C.A. § 5108;
38 C.F.R. § 3.156. For claims filed on or after August 29,
2001, such as these claims, new evidence means existing
evidence not previously submitted to agency decisionmakers.
Material evidence means existing evidence that, by itself or
when considered with previous evidence of record, relates to
an unestablished fact necessary to substantiate the claims.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened and
must raise a reasonable possibility of substantiating the
claim. 38 C.F.R. § 3.156(a).
The Board will outline the underlying law and regulations
pertinent to these claims for service connection.
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in the line of duty, or from aggravation of a preexisting
injury suffered or disease contracted in line of duty. See
38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.
Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000). Where the determinative issue involves medical
causation or a medical diagnosis, there must be competent
medical evidence to the effect that the claim is plausible;
lay assertions of medical status do not constitute competent
medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93
(1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992).
Alternatively, the nexus between service and the current
disability can be satisfied by medical or lay evidence of
continuity of symptomatology and medical evidence of a nexus
between the present disability and the symptomatology. See
Voerth v. West, 13 Vet. App. 117 (1999).
A disorder may be service connected if the evidence of record
reveals that the veteran currently has a disorder that was
chronic in service or, if not chronic, that was seen in
service with continuity of symptomatology demonstrated
thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.
App. 488, 494-97 (1997). Evidence that relates the current
disorder to service must be medical unless it relates to a
disorder that may be competently demonstrated by lay
observation. Savage, 10 Vet. App. at 495-97. For the
showing of chronic disease in service, there is required a
combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic." 38
C.F.R. § 3.303(b). Disorders diagnosed after discharge may
still be service connected if all the evidence, including
pertinent service records, establishes that the disorder was
incurred in service. 38 C.F.R. § 3.303(d).
The Board notes the law and regulations provide that
compensation shall not be paid if the disability was the
result of the person's own willful misconduct or abuse of
alcohol or drugs. 38 U.S.C.A. §§ 105, 1131; 38 C.F.R. §§ 3.1,
3.301. With respect to claims filed after October 31, 1990,
as in this case, an injury or disease incurred during active
service will not be deemed to have been incurred in the line
of duty if the injury or disease was a result of the person's
own willful misconduct, including abuse of alcohol or drugs.
See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m), 3.301. Basic
entitlement to compensation requires that the injury was
incurred in the line of duty. See 38 U.S.C.A. § 1131.
With these considerations, the Board must now review all of
the evidence which has been submitted by the veteran or
otherwise associated with the claims file since the last
final decision in June 2004. In the June 2004 rating
decision, the RO denied the claim for service connection for
depression, finding that service medical records did not show
complaint of, treatment for or diagnosis of depression during
active service. Service connection for alcohol and drug
dependency was denied as these diseases are defined as a
product of willful misconduct under VA law. 38 U.S.C.A. §
105; 38 C.F.R. §§ 3.1(m), 3.301.
Prior to the June 2004 rating decision, the claims file
included the veteran's contentions regarding in-service
incurrence and the assertion that he was treated at the
hospital in Fort Bliss, Texas for the drug and alcohol
dependence while on active duty from January 1978 to April
1982. At that time, the claims file included his personnel
records, including his DD Form 214, which reveals that the
veteran was discharged due to completion of required service.
The record also contained medical records from his reserve
duty. These records include a June 1986 report of medical
examination, dated after the alleged psychiatric
hospitalization, which is negative for any findings relating
to a psychiatric abnormality. At that time, the veteran also
completed a report of medical history in which he indicated
he had no history of depression or excessive worry or nervous
trouble of any sort. Thus, at the time of the June 2004
rating decision, there was evidence to counter the veteran's
current contention that he had been treated for depression
during service, as in these records, completed approximately
four years after discharge from active service, the veteran
was not found to have a psychiatric disability and he
specifically denied a history of depression.
Since the June 2004 rating decision, additional evidence has
been associated with the claims file. This includes
additional VA treatment records, including records which
discuss when the veteran began drinking. These records also
contain psychiatric diagnoses, including the diagnosis of
depression but the record remains devoid of any competent
evidence linking depression, which is not apparent until many
years post-service, to any incident of the veteran's period
of active duty. The veteran also provided testimony before
the Board in June 2008.
The Board finds, as to the claim for entitlement to service
connection for depression, that the record does not contain
any additional evidence of service incurrence that is not
cumulative and redundant of the veteran's contentions
regarding service incurrence already of record. The record
does not contain any medical evidence that the veteran
incurred depression during service. There is no evidence
submitted since the June 2004 rating decision regarding this
claim that raises a reasonable possibility of substantiating
the claim. 38 C.F.R. § 3.156(a).
Regarding the claims for service connection for alcohol and
drug dependency, the Board highlights that such claims must
be denied as a matter of law as VA regulations dictate that
these disorders are considered a product of willful
misconduct. See Sabonis v. Brown, 6 Vet. App. 426, 430
(1994).
Under this circumstance and in the absence of receipt of new
and material evidence, the Board concludes that the
application to reopen claims for service connection for
depression, alcohol dependency and drug dependency must be
denied. 38 C.F.R. 3.156(a).
ORDER
As new and material evidence has not been received regarding
the claim for service connection for depression, the appeal
of this issue is denied.
As new and material evidence has not been received regarding
the claim for service connection for alcohol abuse, the
appeal of this issue is denied.
As new and material evidence has not been received regarding
the claim for service connection for drug abuse, the appeal
of this issue is denied.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs